EXPORING EQUIVEILLANCE

Ian Kerr and Steve Mann
2006 January 1

I. Over and under the Valences of Veillance

Surveillance literally means (in French) "to watch from above." Of course,
surveillance is about much more than mere observation. As
Jim Rule
once defined it, surveillance is "any systematic attention to a person's
life aimed at exerting influence over it". Surveillance studies have
spawned a number of excellent journals, such as
Surveillance & Society.
Such research has also resulted in noteworthy academic
collaborations and networks, such as
The Surveillance
Project

Surveillance is not simply about large organizations using
sophisticated computer equipment. It is also about how ordinary people
- citizens, workers, travelers, and consumers - interact with
surveillance. Some comply, others negotiate, and yet others resist.

One important form of negotiation and resistance has been a movement known
as sousveillance.
Coined by Steve Mann,
sousveillance stems from the contrasting French words sur, meaning "above",
and sous, meaning "below." Sousveillance, a practice that originated with
the use of eyetap (electric eyeglasses as described
here)
and other wearable computing devices,
refers both to inverse surveillance, as well as to the recording of
an activity from the perspective of a participant in the activity
(i.e. personal experience capture).

Surveillance connotes a kind of systematic omniscient "eye-in-the-sky"
(God's eye view) by authoritarian, though human, eyes and architectures.
Conversely, sousveillance involves the recording of an activity by a
participant in that activity.

Surveillance often requires secrecy and panopticism
(Bentham's fancy word
used to describe a centralized optical system that ensured total
transparency in one direction and zero transparency in the other direction).
Conversely, sousveillance seeks to decentralize in order to achieve
transparency in every direction. Sousveillance thus seeks invert (reverse)
the panopticon.

Although it is tempting to see SUR and SOUS as binary, us-versus-them
opposites, we are hoping to spend this week thinking instead about
equiveillance,
that is, the possibility that these two very different social practices
might somehow result in some kind of equilibrium.

While Steve is
optimistic that such an equilibrium can be achieved,
Ian expresses
more ambi-veillance. Both of us have invited a number of colleagues,
professors and students to engage in this dialogue. Below are some of
the issues that we will explore this week.

II. The Promise of Equiveillance

If equiveillance is an achievable state, there will be a balance between
surveillance and sousveillance. If achieved, such a balance will result in
a better ability to document the world from a diversity of perspectives.
From an evidentiary point of view, an equi-veillant state would better
preserve the contextual integrity of veillance data. For example, the
decentralized capture of personal experience would provide an enriched
evidentiary record which could prevent one-sided (surveillance-only) data
from being taken out of context. The search for truth and justice has
already experienced glimpses of this potential as more and more
controversial episodes of public interest are
caught-on-tape.

It is well known that surveillance can be used to exert power and
influence. For better and for worse, both State and private sector
surveillance can create tremendous power imbalances. In an equi-veillant
world, a better balance would be achieved since, in its best light,
sousveillance would act as a kind of ombudsperson: a vehicle through which
individuals can exercise complaints and mediate fair settlements more
effectively against large and powerful entities.

Equiveillance promises a freer society, one which places emphasis on
respect and balance of power. With the greater transparency it provides
through its decentralized watchful vigilance, power-brokers would be held
to greater accountability. Equiveillance might even result in a purer form
of democracy, where respect, power and participation are shared and well
distributed amongst the demos.

III. The Challenge of Equiveillance

1. Is Equiveillance Possible?

Part of what equiveillance seekers hope to achieve is a balance of
informational power. According to
Steve and others,
this has a better chance of happening if and when the field of personal
cybernetics converges with techniques in personal imaging and
cyborglogging,
creating user-friendly means for individuals to store and archive
personal information and personal experience capture.

But even if this convergence becomes technically achievable, producible en
masse, economically feasible, affordable to all, and mass adopted, what
will ensure that the big muscles that the super-powers of surveillance now
flex will in any way meet a balance of force? Although it is conceivable
that the addition of sousveillance could undermine
Foucaultian panopticism's
"visibility and unverifiability", how do we know that the
veillances (Sur + Sous) will truly cancel each other out or reach some
kind of steady state? What good reason is there to think that these
veillances operate like chemical valences?

While the balance/equilibrium metaphors are alluring, equiveillance
theorists need to be able to explain what would otherwise seem
counter-intuitive to most folks who care about privacy and excessive
surveillance:

i) How does a world that contains more and more information
capture devices and greater numbers of information capturers
find itself in a state of equilibrium?

ii) Since sousveillance and surveillance share a similar
potential to do harm, how would the change from the one-sided
monopoly on surveillance ensure an outcome of greater balance
in informational power, more freedom and deeper respect for
and among citizens?

One of the virtues of equiveillance would be an increased reciprocal
transparency in the operations of powerful entities engaged in
surveillance. Such reciprocal transparency has become necessary, in part,
because surveillance often takes place surreptitiously, i.e., without the
knowledge
and consent of the people who are being monitored.

Consent to the collection, use and disclosure of personal information is
central among the
fair
information practice principles (FIPPs) set out in
PIPEDA,
Canada's private sector privacy legislation. Although FIPPs currently apply
only to "organizations", in an equiveillant society, one might expect that
FIPPs could apply equally to the decentralized masses of individuals
enagaged in cyborglogging and other personal experience capture techniques.

FIPPs requires much more than a simple consent to the capture of personal
data. FIPPs requires significant accountability for
collection/use/disclosure in a number of ways. For example, organizations
are generally required: to identify the purposes for collection; to
narrowly limit the collection to those purposes; to limit the
use/disclosure/retention of the information collected; to maintain the
accuracy of the information; to provide safeguards; to provide open access
to information subjects; and to provide a form of recourse for complaints
about improper collections of information.

iii) Should sousveillance also be practiced in accord with
FIPPs?

iv) If it should, then what regulatory/oversight mechanisms would
be used to ensure that this is so? (For example, would the
current infrastructure of the
Office of the Privacy
Commissioner of Canada suffice?
Does equiveillance demand that private sector privacy
legislation needs to be amended to contemplate and
accommodate sousveillance?)

3. If Equiveillance Does Not Respect FIPPs, what is its Moral or
Legal Justification?

Some equiveillance seekers believe that FIPPs must give way to the goal of
achieving greater reciprocal transparency in society, that to have a
society within which personal freedoms and justice are equally distributed,
greater reciprocal transparency is needed. At the same time, other
equiveillance theorists have been careful to distinguish themselves from
David Brin and others who also see the
need (and have the desire) to sacrifice privacy in order to achieve what
often amounts to unidirectional transparency.

Even if symmetry of transparency is not seen as an overarching goal,
obtaining equiveillance might be seen by some to require an abandonment or
at least a suspension of FIPPs. Part of the justification for doing so
would be that powerful entities engaged in surveillance do not comply with
FIPPs and that the only way to destroy the monopoly on surveillance is to
"shoot back"
or "fight fire with fire."

v) How can privacy be maintained if FIPPs-values are jettisoned
for the sake of symmetry in transparency or the change away
from the surveillance-only monopoly?

One justification for doing sousveillance in a way that jettisons FIPPs-
values might be to understand equiveillance seekers as engaged in morally-
minded civil disobedience in the tradition of
Henry Thoreau,
or Dr. Martin Luther King Jr..
This form of sousveillance is a deliberate, open, and peaceful violation
of FIPPs. Its purpose is to undermine or resist an unjust,
illegitimate and immoral surveillance monopoly.

vi) Is sousveillance properly understood as civil disobedience
even if it is surreptitious?

vii) A hallmark of civil disobedience is the willingness of the
civil disobedient to accept the legal consequences. Should
equiveillance seekers who breach FIPPs be held to this
standard?

viii) If Equiveillance does not respect FIPPs, what is its moral or
legal justification?

IV. Legal Protection of Sousveillance

Finally, we consider issues regarding the legal protection of sousveillance
in our current, unbalanced surveillance-centric society. If we arrive at
the conclusion that equiveillance is in the public interest, how can we
protect it against law, policy, and practices that are biased in favour of
surveillance-only regimes?

For example, we already recognize certain social benefits from fire exits,
wheelchair ramps, and the like. Private property owners and governments
are not at liberty to create environments that are unsafe, or that
discriminate in certain ways.

(ix) Should property owners be required to facilitate, permit,
or, at the very least, not to impede sousveillance
activities?

Clearly, some sousveillance activities might result in public safety
benefits (e.g., a memory aid or seeing aid worn by the elderly might happen
to collect evidence useful to a physician or a jury in determining the
cause of a slip-and-fall incident).

x) What legal remedies might be provided to deal with those who
attempt to obstruct equiveillance? Do information rights extend
to those who wish to have a record of their own personal
experiences? For example, what remedies are available to a
person who is prohibited from capturing personal experiences
(eg, "no photographs allowed")?

xi) Is requiring a person to turn off recording devices ever akin
to "tampering with evidence"? If the result of such an incident
is that the surveiller has a record but the sousveiller does
not, ought there to be some sort of legal recourse to the
sousveiller? Is there a rule of evidence or equity that could
support equiveillance in such a situation? Consider, for
example, a situation in which entities "A" and "B" would have
each recorded their own version of "the truth" (i.e. their own
choices of camera angle, etc., when they are interacting with
each other), but for the fact that "A" prohibits "B" from
recording. In this case, "A" has the only recording, because
it has instituted a monopoly on the "recording of fact". Might
a reasonable legal remedy to the possible conflict-of-interest
inherent in such recording monopoly be to dismiss any such
recordings made by "A" as inadmissible evidence in a trial or
proceeding against "B"?

Unlike many of the
ID TRAIL MIX articles published in this space, the purpose of which is
to espouse a particular position or opinion, in this piece, we have tried
to describe what equiveillance is and raise some challenging questions for
discussion. Our aim is exploration. Rather than providing a typical
point-counterpoint debate, we think it will be more interesting to put
forward for discussion the most plausible and appealing version of
equiveillance theory and to inspire a dialogue that investigates its
virtues and vices with the aim of determining the best and most appropriate
approaches for confronting the harms flowing from the excessive and
monopolistic surveillance society that we currently live in.

We view the outcome of the discussion as up-for-grabs, i.e., that any of
those involved in the discussion might be convinced to change their views.
Part of our hope is that the discussion will help focus on solutions that
work.